USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1619

ROSS-SIMONS OF WARWICK, INC., ET AL.,

Plaintiffs, Appellees,

v.

BACCARAT, INC.,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

_________________________

Before

Selya, Cyr and Lynch,

Circuit Judges.
______________

_________________________

Jeffrey A. Oppenheim, with whom Kane Kessler, P.C., John H.

_____________________
__________________ _______
Blish,
_____

Joseph V. Cavanagh, Jr.,

_______________________

Michael W. Carroll
__________________

and Blish &

_______

Cavanagh were on brief, for appellant.

________

Steven E. Snow, with whom Thomas R. Noel and Partridge, Snow

______________
______________
_______________
& Hahn were on brief, for appellees.
______

_________________________

December 13, 1996

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Defendant-appellant Baccarat,

Inc. (Baccarat) implores us to dismantle a preliminary injunction

that compels it to continue selling its wares to the plaintiffs.1

Discerning

neither

error of

law

nor abuse

of

discretion, we

affirm.

I.
I.

BACKGROUND
BACKGROUND

We

divide

our

account

of

the

relevant

background

material into four segments.

A.
A.

The Commercial Climate.

The Commercial Climate.
______________________

Baccarat is a subsidiary of Compagnie des Cristalleries

de Baccarat, a prestigious French

is

the

exclusive

distributor

aristocratic product line.

lead crystal manufacturer.

in

the

United

States of

It

this

Ross-Simons

sundry other

states.

sells

jewelry,

merchandise from

tableware,

crystal,

retail stores located

and

in several

Roughly eighty-five percent of its business, however, is

generated

through

catalog

and

telemarketing

sales.

It

distributes 45,000,000 catalogs annually and maintains a bustling

distribution

registry

center in

Cranston, Rhode Island.

comprises an

integral part of

bridal gift

Ross-Simons' business.2

____________________

1Ross-Simons,
Simons of

Ross-Simons

Barrington, Inc.,

Ross-Simons of
herein.

Inc.,

Warwick,

Inc., Ross-

Ross-Simons of Atlanta,

North Carolina,

For simplicity's

of

L.L.C. are all

L.L.C. and

named plaintiffs

sake we refer to them

collectively as

"Ross-Simons."

2The mechanics of a
In its

simplest iteration,

they would like

to possess

carries those items.

or

bridal gift registry are uncomplicated.

gifts

for other

betrothed couples select

and "register" with

Persons who wish to give

occasions

can then

items that

a merchant

who

wedding presents

contact

the merchant,

The firm

acquires approximately 15,000 new

and has about 30,000

active registrations at any given time.

1995 Ross-Simons grossed

including

$1,000,000

registrants annually

$150,000,000 from

attributable to

all its

Baccarat

In

operations,

crystal (mostly

from catalog sales).

Ross-Simons

price" retailer,

carved its

niche as

a discount

frequently advertising prices as

or "off-

much as fifty

percent below

different

school, having

discounters.

to

suggested retail

(not a

steadfastly

Baccarat

comes from

resisted discounting

and

For many years Baccarat refused to sell its crystal

Ross-Simons.

American

prices.

Moreover, when

distributor of

Haviland

Baccarat became

the exclusive

Limoges porcelain

product that Baccarat manufactured),

dinnerware

it terminated Ross-

Simons as an authorized dealer for that line.

Rather

than

responded by filing

inter
_____

an antitrust

the

other

suit.

cheek,

Ross-Simons

Its complaint

alleged

alia that Baccarat refused to deal with Ross-Simons due to

____

the latter's

1992,

turning

the

Agreement)

proclivity for

parties

entered

that settled

discount pricing.

into

written

their differences.3

In

November of

accord

Pursuant

(the 1992

to that

agreement,

the federal

district court

dismissed

the antitrust

suit without prejudice.

____________________

choose

an

item from

the list,

and

have it

delivered

to the

registrant(s).

3In
parties

addition
to

both

to

Baccarat,

the

lawsuit

other
and

the

involvement does not affect this appeal.

named

defendants

settlement.

were

Their

B.
B.

The 1992 Agreement.

The 1992 Agreement.
__________________

An understanding

of the 1992 Agreement

reasoned consideration

of the issues

Ross-Simons styled the

pact as an

Settlement"

Island

law.

parties

for

and stipulated that

They memorialized

the settlement

causes of action."

either

to

of

However, they

approve the

on appeal.

is critical to

Baccarat

and

"Agreement of Compromise

and

it would

it "as a

their

be governed

by Rhode

compromise between the

claims, differences

and

did not ask the district court

settlement terms

or

to enter

a decree

embodying those terms.

By virtue

Ross-Simons

resell

as an

of

the 1992

Agreement, Baccarat

authorized dealer

[Baccarat crystal] products at

"entitled to

appointed

purchase and

such prices and upon such

terms as are available to other authorized dealers."

Baccarat

agreed "not

[to] terminate

In addition

Ross-Simons' status

as an

authorized dealer, nor otherwise discriminate against Ross-Simons

in

any manner, [for its

prices

or

catalogs."

due

to

refusal] to adhere

Ross-Simons'

marketing through

The 1992 Agreement contains no

it specifically

provides that

to suggested resale

direct-mail

durational term, but

its covenants and

conditions are

not terminable on the basis of changed facts.

C.
C.

The Proposed Agreement.

The Proposed Agreement.
______________________

Ross-Simons sold

without

incident,

increasingly fragile

until

Baccarat

business

series

products for

of

events

relationship.

three

years,

shattered

A new

the

management

regime took control of Baccarat in 1994 and Jean-Luc Negre became

the firm's chief executive

his

view that

luxury items.

an attempt,

it was

officer.

Early on, Negre

inappropriate for

retailers to

He then reshaped Baccarat's marketing

as he

prestige . . .

put it,

to

made known

improve the

discount

strategy in

"overall image

of [Baccarat's] world-renowned name."

and

Under the

revised plan, Baccarat limited the number of retailers to whom it

would

sell

its products

"Authorized

Dealer Program."

status in 1996

form of

and

simultaneously

To

and beyond, a

introduced a

retain authorized

retailer had to sign

dealer agreement (the Proposed Agreement)

new

dealership

a particular

no later than

December 15, 1995.

Although Baccarat invited

other retailers)

was

a rub;

to participate in this

by its

advertising of

terms the

the items

neoteric program, there

Proposed Agreement

prohibits the

Baccarat products in any catalog or other printed

medium that promotes at

of

Ross-Simons (along with 379

off-prices more than twenty-five percent

advertised.

In

addition, Baccarat

reserved the

right to determine in its sole discretion "whether an advertising

or promotional practice

is damaging to

the image, prestige

and

goodwill" of its products.

If Baccarat found any

offensive, it could terminate

such practice

the dealership forthwith.

Because

Ross-Simons (alone among Baccarat's invitees) devotes most of its

catalog

to discounted

items, and

because Negre

previously had

proclaimed that off-pricing was inconsistent with prestige, Ross-

Simons

violated

viewed the proposal as a "suicide note," asserted that it

the terms of the

1992 Agreement, and

refused to sign.

Presumably in anticipation that

its

threat

products

of

in late

Baccarat refused

orders

termination,

1995.

to

Baccarat would follow through on

Ross-Simons

The

precaution

fill Ross-Simons'

previously received

but

stockpiled

Baccarat

proved justified,

orders

(including

theretofore unfilled)

as

1995

from and

after January 1, 1996.

D.
D.

Ross-Simons

The Proceedings Below.

The Proceedings Below.
_____________________

sued

Baccarat

in a

Rhode

Island

state

court, claiming breach of contract, breach of an implied covenant

of good

faith and fair

advantageous business

dealing, and tortious

relationships.

Baccarat

interference with

removed the case

to

the federal

district

(diversity jurisdiction),

which

diversity

court.

See
___

28

1441 (permitting

jurisdiction

exists).

U.S.C.

1332(a)

removal of cases

In

short

order,

in

the

district court conducted an evidentiary hearing and granted Ross-

Simons'

motion to compel Baccarat, pendente lite, to continue to

________ ____

sell products

the court

the

in pursuance of the 1992 Agreement.

predicted that

theory

that

the

Ross-Simons probably would

Proposed

impermissible attempt by Baccarat

Relatedly,

the court

irreparable harm

In its ruling

concluded

Agreement

prevail on

constituted

an

to subvert the 1992 Agreement.

that

in the absence of

Ross-Simons would

suffer

mandatory injunctive relief,

and conversely, that Baccarat would undergo scant hardship should

a preliminary injunction issue.

II.
II.

This appeal ensued.4

ANALYSIS
ANALYSIS

In the

applicable

sections that

to preliminary

assess how well the

follow, we peruse

injunction

the checklist

determinations

and

then

district court's order withstands Baccarat's

multi-pronged attack.

A.
A.

The Preliminary Injunction Standard.

The Preliminary Injunction Standard.
___________________________________

Over time,

use

in determining

we have

crafted a four-part

whether the grant

injunctive relief is appropriate.

or denial

framework for

of preliminary

Under this formulation, trial

courts must consider (1) the likelihood of success on the merits;

(2)

the

denied;

potential for

(3)

hardship to

hardship

to

the

harm if

the

injunction is

balance

of relevant

impositions,

the nonmovant

if enjoined

as

the movant

effect (if any)

See Weaver v.
___ ______

irreparable

of the

if no

injunction

court's ruling on

Henderson, 984 F.2d 11, 12 &

_________

i.e.,

the

contrasted with

the

issues; and

the public

(4) the

interest.

n.3 (1st Cir. 1993);

Narragansett Indian Tribe v. Guilbert,

__________________________
________

934 F.2d 4,

5 (1st Cir.

1991).

An

the

district

appellate court

court's

affords considerable

evaluative

judgment

factors and of their interrelationship.

952 F.2d 603, 605 n.2 (1st Cir. 1991).

See
___

of

deference to

these

discrete

Anthony v. Sundlun,
_______
_______

Thus, a party who appeals

____________________

4Baccarat's endeavors to secure

a stay were unavailing, and

the preliminary injunction is in force.

from

the

considerable

issuance

of

preliminary

burden

of

demonstrating

injunction

that

the

bears

trial

the

court

mishandled the four-part framework.

See EEOC v. Astra USA, Inc.,

___ ____
_______________

94

In sum, unless the appellant

F.3d 738, 743 (1st Cir. 1996).

can show that the lower court misapprehended the law or committed

a palpable abuse

intervene.

See
___

of discretion,

the court of

appeals will

Narragansett Indian Tribe, 934

___________________________

F.2d

Independent Oil & Chem. Workers of Quincy, Inc. v.

___________________________________________________

Gamble Mfg. Co., 864

________________

F.2d

927, 929

(1st Cir.

1988).

at

not

5;

Procter &
_________

Though

mistake of law is a rubric that requires no elaboration, abuse of

discretion is a fuzzier concept.

see Weaver, 984 F.2d

___ ______

at 13; Narragansett Indian Tribe,

_________________________

at 5-6, and

a finding

nisi

court,

prius

pertinent

elements

improper criteria,

inappropriate

That inquiry is case-specific,

of abuse usually

in

making the

deserving

or, though

factors,

934 F.2d

entails proof that

challenged

significant

ruling,

weight,

erred

in balancing

ignored

considered

assessing all appropriate

plainly

the

and no

them,

see
___

Procter & Gamble, 864 F.2d at 929.

________________

We proceed

under this

first

to scrutinize the

deferential glass.

In so

district court's

ruling

doing, we address only the

two rungs of the four-part framework, as Baccarat does not

challenge the district court's analysis anent either the third or

fourth rung.

B.
B.

The Likelihood of Success.

The Likelihood of Success.
_________________________

Likelihood of success is

four-factor framework.

See
___

the main bearing wall

Weaver, 984 F.2d at 12;

______

of the

Auburn News
___________

Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir. 1981),
___
______________________

cert. denied, 455 U.S. 921 (1982).

_____ ______

district court's assessment of

examine each

prudent to

in turn.

outcome on

Before

doing

preliminary

injunction stage, need not

934

F.2d

at

injunction "are

outcomes"

conclusively

so, however,

only),

determine the

an

We

it

court, at

predict the eventual

assurance, see Narragansett

___ ____________

(cautioning

to be

we deem

just as the trial

the merits with absolute

Indian Tribe,
____________

probable

this factor in two respects.

remind the reader that,

the preliminary

Here, Baccarat challenges the

that

understood as

appellate

merits of

decisions

on

statements of

court

the underlying

need

not

claims to

execute abuse-of-discretion review.

1.
1.

The Nondiscrimination Clause.

The Nondiscrimination Clause.
______________________________

As

previously

mentioned,

see supra Part I(B),

___ _____

"discriminate against

Ross-Simons in any manner"

predilection for off-pricing.

clause

in holding that

breach of

Baccarat agreed in

The district

because of its

court relied on this

Ross-Simons likely would

contract claim.

1992 not to

prevail on its

However, Baccarat maintains

that it

terminated Ross-Simons for failing to sign the Proposed Agreement

and,

same as

any other

dealer who refused to honor this uniform set of terms.

Since the

lower

in

doing so,

court's

differently than

treated Ross-Simons

order

requires

other

allowing Ross-Simons

dealers

Baccarat

the

to

that is,

to buy Baccarat crystal

the Proposed Agreement's uniform terms

not Baccarat's conduct, this

treat

Ross-Simons

more favorably,

by

without abiding by

it is the court's order,

thesis holds, which contradicts the

nondiscrimination clause

resupinate reasoning

contained in the 1992

Agreement.

stands the nondiscrimination clause

This

on its

head and ignores the district court's factual findings.

Judge

Boyle

found

that

of the

380

retailers

whom

Baccarat invited to become authorized dealers, only one of them

Ross-Simons

engaged in systematic off-pricing.

proscription against widespread discounting

Thus, while the

was part and

parcel

of

a uniform contract (i.e., the Proposed Agreement), only Ross-

Simons would feel

judge

drew

the

its sting.

eminently

Building on

this foundation

reasonable inference

that

the

Baccarat

(which had not previously attempted to impose a monolithic set of

dealer

agreements)

deliberate

basis, he

the

wrote

effort to

particular

circumvent the

concluded that

merits

these

provisions

1992 Agreement.

as

the

proscription

On this

Ross-Simons probably would

inasmuch

in

succeed on

violated

the

nondiscrimination clause.5

To be sure, these findings are not inevitable, but they

reflect a

court.

reasoning

plausible rendition

The findings,

and give

of the

in turn,

meaningful

evidence then

support

effect to

before the

the court's

the 1992

chain of

Agreement's

nondiscrimination

preliminary

its

duty

clause.

That

stage, it is both

"to

assess

the

ends

the

matter:

at

this

the trial court's prerogative and

facts,

draw

whatever

reasonable

____________________

5Among other things, Baccarat's former president (who signed

the

1992

supporting

Agreement

on

its

Ross-Simons' view

behalf)
of

executed

an

the nondiscrimination

affidavit

clause.

This testimony buttresses the district court's application of the

clause.

10

inferences it might favor,

and decide the likely ramifications."

Procter & Gamble, 864 F.2d at 933.

________________

2.
2.

Baccarat

The Uniform Commercial Code.

The Uniform Commercial Code.
_____________________________

attempts

to

contract for the sale

characterize

the

In

1992

its next

Agreement

of goods, thus bringing into

2-309(2)

6A-2-725 (1992), and, in particular, R.I. Gen. Laws

("Where

performances

but is

the

contract

indefinite in

provides

for

duration it

as

play Article

Two of the Uniform Commercial Code (UCC), R.I. Gen. Laws

101 to

foray

6A-2-

6A-

successive

is valid

for a

reasonable time, but unless otherwise agreed may be terminated at

any

time by either party.").

In Baccarat's

view, this statute

renders the 1992 Agreement terminable at will and thus undermines

Ross-Simons'

contract claims.

This argument,

though burnished

with considerable care, builds on a false premise.

We

begin with

intentions

of

contracts.

See
___

the

bedrock.

contracting

United States
_____________

Courts look to

the apparent

parties

interpreting

when

v. Seckinger, 397
_________

U.S. 203,

212

n.17 (1970); McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir. 1994);
________
_____

Fashion House, Inc. v. K mart Corp.,

____________________
_____________

892 F.2d 1076,

Cir. 1989); Johnson v. Western Nat'l Life Ins. Co., 641

_______
___________________________

48 (R.I. 1994).

A valid settlement agreement is

contract subject to

ITT Corp. v.
_________

this basic principle

LTX Corp., 926 F.2d 1258,

_________

1084 (1st

A.2d 47,

an enforceable

of construction.

See
___

1266-67 (1st Cir. 1991);

Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 856
________________
__________________________

(1st Cir. 1987); T & T Mfg. Co. v.

______________

537

(1st

Cir. 1978),

A.T. Cross Co., 587 F.2d 533,

______________

cert. denied,
_____ ______

441

U.S. 908

(1979); cf.
___

11

Langton v. Johnston, 928 F.2d 1206, 1221 (1st Cir. 1991) (stating
_______
________

that

consent decrees

setting are

between

private parties

treated as contracts).

applies to the

1992 Agreement hinges

Thus,

in a

commercial

whether Article

primarily on the

Two

parties'

intentions.

The

district

court

statute, apparently convinced

Agreement.

Two

that it

any

reference

did not

Laws

We believe that this action is supportable.

6A-2-102.

blend of sale and

the

dominant

transaction.

Furthermore, if

behind

the

a contract

contract

the

reflects

1992

Article

See R.I.
___

contains a

nonsale elements, Article Two applies

purpose

only if

sales

See ITT, 926 F.2d at 1266; Cianbro Corp. v. Curran___ ___

_____________
_______

Lavoie, Inc., 814

____________

F.2d 7,

Cox, 499 F.2d 951, 960 (8th

___

R.

to

govern the

does not purport to regulate nonsale transactions.

Gen.

&

eschewed

13-14 (1st Cir.

1987); Bonebrake
_________

v.

Cir. 1974); see generally 1 J. White

___ _________

Summers, Uniform Commercial Code

________________________

1-1 (4th

ed. 1995).

Consequently,

of

Article Two is not in play if the dominant purpose

an agreement

F.2d

at 1266;

is to settle

litigation.

New Eng. Power Co.

___________________

N.E.2d 1054, 1060-61 (Mass. App.

See,
___

e.g., ITT, 926

____ ___

v. Riley Stoker Corp.,

___________________

477

Ct.), review denied, 481 N.E.2d

______ ______

197 (Mass. 1985).

While it

issue

the

is not

necessary definitively to

of predominant purpose

record strongly

Agreement

litigation.

suggests

intended first

at this stage

that

the

and foremost

in the proceedings,

parties

to settle

For one thing, the title of the pact

12

decide the

to

the

1992

the antitrust

"Agreement of

Compromise

and Settlement"

intentions.

Though

the label that contracting

an agreement is not

Inc.,
____

604

contract

it can

See, e.g.,
___ ____

F.2d 737,

entitled

precisely that);

parties affix to

necessarily determinative of the agreement's

predominant purpose,

purpose.

is a good barometer of the parties'

constitute potent evidence

Triangle Underwriters, Inc.

___________________________

742-43 (2d

"Agreement for

Cir.

the

v. Honeywell,
__________

1979) (holding

Sale of

Riley Stoker, 477 N.E.2d

____________

of that

a hybrid

[Goods]"

to be

at 1060-61 (declining

to characterize

a document labelled "Settlement

Agreement" as a

contract for the sale of goods).

For

another

thing, the

contains

language

that

suggested

by its

title

agreement

opens

compromise

claims,

between

the 1992

with

any

declaration

parties

and causes

with

other

that

for the

of action

the sole purpose of

____

matters involved

in

These excerpts

primary impetus

for

the

the

purpose

The

represents

settlement

of

with respect

"a

their

to the

parties executed

compromising and settling

[the antitrust]

dispute."

(Emphasis

comprise powerful evidence

agreement

Agreement

purpose.

it

later section reiterates that the

the document "for

supplied).

of

more consistent

than

the

differences

dispute."

the

with

is

body

was to

abate

the

that the

pending

litigation.

Baccarat tries to throw cold water on this proposition.

Since

the

antitrust

suit

was

dismissed

Baccarat suggests that Ross-Simons

at

any

time, and,

thus, the

without

prejudice,

could have revived the claims

predominant

purpose of

the 1992

13

Agreement

must have been the sale of

goods.

We think that this

is

a classic non sequitur.

Dismissing a

lawsuit, even without

prejudice, is not an idle matter; it has consequences in terms of

costs,

legal expenses,

time bars,

and the

like.

Because the

parties' intentions (and, therefore, the contract's meaning) must

be

gleaned from

all the

surrounding circumstances,

see, e.g.,
___ ____

Seckinger, 397 U.S. at 212 n.17, the dismissal without prejudice,

_________

by itself, cannot support Baccarat's characterization.

invoke

There is

a second

Article Two:

even

parties never

will.

Indeed,

intended the

the parties

Agreement would operate at

provided

in section

problem with Baccarat's

this scant record

1992 Agreement

attempt to

indicates that the

to be

must have understood

terminable at

that the

1992

some length because they specifically

four that

each party

assumed the

risk of

changes in

terminate

the operative

the

facts and

agreement on

This proviso would be

relinquished

the basis

of such

any right

to

factual shifts.

nonsensical if either party had

the right

to terminate the agreement at will.

Raw logic bolsters this evidence.

covenants

contained

surrendered the

against Baccarat.

in

the

1992

In exchange for

Agreement,

the

Ross-Simons

opportunity to pursue colorable antitrust claims

reasonable factfinder easily could conclude

that Ross-Simons would not have abandoned such

an opportunity in

exchange for a settlement that, in Judge Boyle's phrase, Baccarat

could

have ripped up

the next morning.

intent, made manifest by

Based

the language of the 1992

14

on the parties'

Agreement and

the circumstances of the settlement itself, it seems quite likely

that the Agreement was not meant to be terminable at will.

We have said enough on this score.

have enumerated, the

to this

issue

effect,

that

lower court's four major actions in respect

namely,

determination that

For the reasons we

its refusal

the terms

its interpretation

Ross-Simons had

of the

of those

demonstrated a

to apply Article

1992

Two, its

Agreement remain

terms, and

in

its conclusion

significant likelihood

of

success on the merits of its contract claims

are

impervious to

in

this circuit,

Baccarat's assault.

C.
C.

Civil

places

the

Rule

Irreparable Harm.
Irreparable Harm.
________________

65(a),

burden of

as

demonstrating

injunctive relief would cause

movant.

interpreted

that a

denial

of interim

irreparable harm squarely upon the

See Narragansett Indian Tribe, 934 F.2d at 6.

___ _________________________

Baccarat

questions whether Ross-Simons carried this burden.

The

overstate

is

its dimensions.

insisting that,

percent

burden

substantial,

Baccarat falls

since Baccarat

of Ross-Simons'

but it

total

is

into

possible

to

this trap

by

crystal comprises less

annual sales,

there

than one

can be

no

irreparable

jeopardize

harm

because

Ross-Simons'

withholding

economic

irreparable harm, however, a

the

the

viability.

line

To

could

not

establish

plaintiff need not demonstrate that

denial of injunctive relief

will be fatal

to its business.

See General Leaseways, Inc. v. National Truck Leasing Ass'n, 744

___ _______________________
_____________________________

F.2d

588, 591

(7th Cir.

1984).

15

It is

usually enough

if the

plaintiff shows

that its

Weinberger
__________

Romero-Barcelo,
______________

v.

legal

(collecting cases); Lopez v.

_____

1990).

remedies are

456

U.S.

inadequate.

305,

312

Garriga, 917 F.2d 63, 68

_______

See
___

(1982)

(1st Cir.

If the plaintiff suffers a substantial injury that is not

accurately measurable or adequately compensable by money damages,

irreparable harm is a

TV Cable Co. v.
____________

F.3d

natural sequel.

See, e.g.,
___ ____

Multi-Channel
_____________

Charlottesville Quality Cable Operating Co., 22

____________________________________________

546, 551 (4th Cir.

1994); K-Mart Corp.

____________

v. Oriental Plaza,
_______________

Inc., 875 F.2d 907, 915 (1st Cir. 1989); Danielson v.

____
_________

Laborers Int'l Union,

____________________

Local 275,
__________

479 F.2d 1033, 1037 (2d Cir. 1973).

Thus,

a cognizable threat of such harm can support a restraining order.

Even so, whether Ross-Simons made the requisite showing

in

this

case poses

a close

question.

Although

there

is no

mechanical test that permits a court to make an exact calculation

of

the quantum

justify

of

interim

guideposts.

hard-to-measure harm

injunctive

In the

relief,

first place, the

that

there

will suffice

are

some

to

relevant

plaintiff's showing

must

possess some substance; a preliminary injunction is not warranted

by a tenuous or overly speculative forecast of anticipated

See
___

Narragansett Indian Tribe, 934 F.2d at 6-7; Public Serv. Co.

_________________________
________________

v. Town of W. Newbury, 835 F.2d 380, 383 (1st Cir. 1987).

__________________

second

place,

an attempt

evaluated in a vacuum;

success on the merits

See

harm.

Astra USA, 94

to

show irreparable

the predicted harm and the

harm

cannot be

likelihood of

must be juxtaposed and weighed

F.3d at 743 (explaining

In the

in tandem.

that the greater the

___

_________

likelihood

of merits success, the

less that is

required in the

16

way of irreparable harm); Gately v. Commonwealth of Mass., 2 F.3d

______
_____________________

1221,

1232

(1st Cir.

1993)

(noting

the same

suggesting that irreparable harm is subject to a

analysis),

cert. denied, 114 S. Ct. 1832 (1994).

_____ ______

phenomenon

and

"sliding scale"

Finally, it is

clear

that battles

over the

alleged most often will be

K-Mart, 875 F.2d at

______

to

evaluate

quality and

the harm

won or lost in the trial court.

915 ("District courts have

the irreparability

determinations

quantity of

regarding the

of

alleged

propriety of

See
___

broad discretion

harm

and to

make

injunctive relief.")

(citation and internal quotation marks omitted).

In this

Ross-Simons

made

restraining

order,

sustain

harm

determination

uniqueness

to

instance

the

it

its

on two

of Baccarat

the district

requisite

would

factual

showing

lose

goodwill.

because,

incalculable

The

findings.

crystal,

court determined

court

absent

revenues

grounded

First,

Ross-Simons

that

due

could not

and

this

to

the

simply

replace the Baccarat line with some other brand, and, without the

availability of

suffer.

Baccarat,

The resultant

its bridal

damage,

registry

business

would

including lost

sales of

other

registry items, alienation of future registrants, and harm to its

reputation,

Baccarat

had

would defy

accurate quantification.

Second, when

ceased filling Ross-Simons' orders, Ross-Simons already

printed

catalog,6 and

and

distributed

millions of

copies

of

its 1996

that catalog held Ross-Simons out as an authorized

____________________

6Following its

usual praxis, Ross-Simons prepared

its 1996

catalog in the fall of 1995 and began mailing it later that year.
The

catalog identifies

Ross-Simons

17

as

an authorized

Baccarat

purveyor of Baccarat crystal.

to

supply products

immeasurable)

as advertised

damage

painstakingly had created

Baccarat's

The court found that the inability

to

the

counter-argument

Ross-Simons would

goodwill

over the years.

that

Baccarat crystal safeguarded it

that

would wreak

deplete

substantial (but

that

Ross-Simons

The court

Ross-Simons'

stockpiling

from this type of harm,

its

beefed-up

dismissed

of

finding

inventory

well

before the litigation ended.

Like

bridal registry

the district

court, we

think that

business is the focal point

Ross-Simons'

of irreparable harm

in this case.

stop

Similar to full-line distributors who

shopping" as a means of meeting all their customers' needs,

Ross-Simons promotes

line

hawk "one-

its bridal registry as

of giftware, including

many choices of

not among Ross-Simons' best-selling

prestigious

item

unique,

offering a complete

crystal.

Although

lines, Baccarat crystal is a

top-shelf

line

that

boasts

considerable allure and that is capable of serving as a beacon to

attract

registry,

potential

as

availability

customers.

in a

of

important, than

variety

a product

the

amount

Supermarket Servs., Inc.

________________________

In

the

of other

line is

of

context

commercial

as

of

settings, the

important, if

not more

See,
___

e.g.,
____

v. Hartz Mountain Corp., 382 F.

_____________________

Supp.

1248, 1256 (S.D.N.Y. 1974) (noting

sales generated.

bridal

the importance of offering

particular

registrants,

brand

lest

unable

to

customers

include

go

elsewhere).

Baccarat

Potential

crystal among

their

____________________

dealer and contains a listing of available Baccarat products.

18

selections, may

choose not to register at

enlisting instead with a competitor

of desired products.

all with Ross-Simons,

who offers the full spectrum

To

be sure,

bridal registry

the district

rest

Simons' business,

on a

of assumptions

consistent with

finding

of

about

Ross-

But the assumptions are reasonable and

the available

evidence; thus,

subsidiary findings are not unduly speculative.

findings, in

anent the

its customers' attitudes, and the way in which

the marketplace operates.

are

number

court's findings

turn, are

enough

irreparable

to bottom

injury.

After

the court's

These subsidiary

the court's

all,

if

the

ultimate

court's

subsidiary findings are correct, it could never be shown how many

brides opted not to associate themselves with Ross-Simons because

Baccarat

products

were

inexorably

that neither

concomitant

insult to

unavailable,

the

and

it

would

adverse impact

on

sales nor

goodwill could

be measured

follow

the

accurately.7

See Interphoto Corp. v. Minolta Corp., 417 F.2d 621, 622 (2d Cir.
___ ________________
_____________
____________________

7While the
sustainable

district court's finding of

on this basis alone, the fact that the 1996 catalogs

already were in circulation

the

threat

catalog
believing
then

irreparable harm is

when the contretemps arose increases

to Ross-Simons'

recipients

goodwill.

might place

that Ross-Simons

be disappointed.

orders

could supply

Absent an
for

injunction,

Baccarat products,

advertised

items, and

The harm to Ross-Simons' general goodwill

stemming from its inability to fill such orders likewise would be

incalculable,

and, thus,

irreparable.

See,
___

e.g., Blackwelder
____ ___________

Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196-97 (4th
_____________
_______________

Cir.

1977); Bascom Food Prods. Corp. v. Reese Finer Foods, Inc., 715
_________________________
________________________
F. Supp.

616, 637-38 (D.N.J. 1989)

v. United States Postal Serv., 573

___________________________

(collecting cases); Robinson

________
F. Supp. 244, 245

(D. Mass.

1983); see also Hypertherm, Inc. v. Precision Prods., Inc., 832

___ ____ _________________
_______________________

F.2d 697, 700 (1st Cir. 1987) (holding that substantial damage to
business reputation

is a sufficient showing

to justify preliminary injunctive relief).

19

of irreparable harm

1969) (per curiam); Supermarket Servs., 382 F. Supp. at 1256-57.

__________________

This is far from

nature

or

injury to goodwill and reputation

fully compensable in damages.

is often

915;

an aberrational result.

held to be irreparable.

By

its very

is not easily measured

Accordingly, this kind of harm

See, e.g., K-Mart, 875 F.2d at

___ ____ ______

Camel Hair & Cashmere Inst. of Am., Inc. v. Associated Dry

_________________________________________
______________

Goods Corp.,
___________

799 F.2d 6, 14-15

(1st Cir. 1986).

Of particular

interest

for

purposes

of

recognized that the loss

may create a

this

appeal,

several

courts

of a prestigious brand or

threat of irreparable injury

have

product line

if it is

likely that

customers (or prospective customers) will turn to competitors who

do not labor under

TV, 22 F.3d
__

the same handicap.

See,
___

at 552; Jacobson & Co. v.

_______________

e.g., Multi-Channel
____ _____________

Armstrong Cork Co.,

__________________

548

F.2d 438, 444-45 (2d Cir. 1977); Bergen Drug Co. v. Parke, Davis
________________
____________

& Co., 307

_____

F.2d 725, 728 (3d Cir. 1962);

Steinway, Inc.,
_______________

689

Supermarket Servs., 382

__________________

F.

Supp.

Hendricks Music Co. v.

___________________

1501, 1512

(N.D.

F. Supp. at 1256-57; see

___

Ill.

1988);

also Automatic
____ _________

Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 116-17 (1st Cir.)
______________
______________

(suggesting

in

dictum that

irreparable

harm

to a

retailer's

goodwill may result

products),

from an inability

cert. denied, 391 U.S.

_____ ______

to supply a full

914 (1968); Leone

_____

line of

v. Town of
_______

New Shoreham, 534 A.2d 871, 874 (R.I. 1987) (holding that loss of
____________

goodwill

due

to

inability

to

serve

returning

customers

constitutes irreparable harm).

Baccarat's

degree

of

the harm

other

that

arguments regarding

Ross-Simons

20

alleges

the

nature and

do not

require

comment.8

the

Mindful of the preliminary stage

strong

likelihood

merits, and

finding

that

Ross-Simons will

the trial court's

that

Ross-Simons

of the proceedings,

prevail

broad discretion,

faced

irremediable

on

the

we uphold

the

harm if

interim

injunctive relief were withheld.

III.
III.

CONCLUSION
CONCLUSION

We

applied

the

need

go

no further.

traditional

the district

four-part framework

before it.

In doing so,

criteria,

eschewed reliance

the relevant factors with

Here,

the court mulled

to

all the

on inappropriate

the

court

evidence

appropriate

criteria, weighed

considerable care, and determined that

Ross-Simons made a sufficient showing to justify the

an

injunction pendente
________

lite.
____

Given the

findings that anchor this determination,

case-specific factual

we cannot say that

court's action constituted an abuse of discretion.

Affirmed.
Affirmed.
________

____________________

issuance of

the

8For example, Baccarat suggests that Ross-Simons could

still

can

Agreement.

avoid any
This is

court of equity

harm

simply

sheer persiflage.

should

by

signing the
The law

much

not compel a litigant to sign

farm in order to save the crops.

21

and

Proposed

less a

away the